that an entry in a public document made by a public officer for the information of the public is presumed to be true, and is admissible in all cases, including those in which pedigree is in issue (n); therefore, in Lyell v. Kennedy (o), entries in Scotch Parochial Registers (produced from proper custody) were held admissible on a question of pedigree.

(n) See Sturla v. Freccia, L. R., 5 App. Cas. 623.

L. R., 14 App. Cas. 437.

CHAPTER XII.

EVIDENCE OF DYING DECLARATIONS.

THE principle that evidence is inadmissible, unless given on oath, and when the party who is to be affected by it can have the benefit of cross-examination, is limited by another exception in cases of homicide, where the deceased, under the impression of immediate or impending dissolution, has made a statement concerning the identity of the assailant, and the circumstances of the attack. It is presumed that the sense of approaching death in the declarant is calculated to produce in him a sentiment of responsibility, equal to that which a religious and conscientious man feels when required to make a statement on oath, and that the obligation to utter nothing but the strict truth is even greater, inasmuch as he knows the hour to be at hand when he must render an account of all his words and acts to the Supreme Being (a). Accordingly, where either the sense or conviction of approaching death is deficient or uncertain, or where it appears that the declarant had no sufficient belief in a future state, and his future responsibility for his actions in this life, his dying declarations will not be received. Even when they are received, their value and credibility will vary infinitely, according to the circumstances. In all cases a strong objection to their full credibility arises from the fact that they are usually given in evidence against one who has had no opportunity of

(a) "Nemo moriturus præsumitur mentiri."

cross-examining the declarant, and thus of refuting out of his own mouth the errors, omissions, contradictions, and possibly wilful misstatements, which the latter may have committed. It often happens, also, that the declaration is made on great pressure, when the declarant is suffering from physical exhaustion or mental alienation, and when he is partially, or even wholly, unconscious of the full purport of his declaration. These considerations, combined with the strong objection of the English law to condemn any man on the testimony of an absent, or even a deceased, witness, induce courts to regard this species of evidence with great watchfulness and suspicion. The judge, therefore, whose duty it is to inquire into the circumstances under which the declaration has been made, as a condition precedent to its admission, will generally exclude it if there appear to be any reasonable doubt as to the veracity, sanity, consciousness, or sense of religious responsibility and impending dissolution in the mind of the declarant at the time of the statement. Subject to these remarks it is held to be a rule that—

In murder, or homicide, the declarations of the deceased, concerning the cause and circumstances of his mortal wound, if made with a full consciousness of approaching death and religious responsibility, are admissible in evidence for or against the prisoner who is charged with the crime (b).

In R. v. Woodcock (c), Eyre, C. J., said :-" The general principle on which this species of evidence is admitted, is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is

(b) Dying declarations are inadmissible in civil cases; Stobart v. Dryden, 1 M. & W. 626. (e) 1 Leach, C. C. 502.

gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice." In that case it was held that a statement made by the deceased to a magistrate, who administered an oath to her extra-judicially, could not be received; but that a statement made by her when her dissolution was fast approaching, and when she must have known the fact, although she said nothing that indicated such a knowledge, was receivable. The judge there left it to the jury to say whether the statement was made under the apprehension of death; but the modern practice is for the judge himself to decide this question. It will be observed that, in this case, although the statement was inadmissible as a statement on oath, in a situation where an oath was improperly administered, there was no objection to it on the ground that the statement was made in answer to a formal and solemn inquiry. Accordingly, it is held not to be necessary that the statement should be voluntary or spontaneous; and answers, in articulo mortis, to questions put by a surgeon, for the purpose of ascertaining whether he ought to call in a magistrate, have been received (d).

It was said by Lord Denman (e), that, with regard to declarations made by persons in extremis, supposing all necessary matters concurred, such as actual danger, death following it, and a full apprehension at the time of the danger and of death, such declarations can be received in evidence; but all these things must concur to render such declarations admissible. To these three conditions a fourth must be added, viz., religious sentiment (ƒ).

(d) R. v. Fagent, 7 C. & P. 238. (e) Sussex Peerage Case, 11 C. & F. 112.

(f) R. v. Pike, 3 C. & P. 598.

The declaration must be made when the declarant is in

actual danger.

This proposition is commonly stated more broadly, that the declaration must be made in extremis, or in articulo mortis (g); but there appears to be no definite limitation of the time, before death, within which the declaration must be made; and recent cases support the doctrine, that declarations made under apprehension of death, if otherwise admissible, will not be rejected because a considerable time elapses between the declaration and the death. Thus, in R. v. Mozley (h), the declarations were held by all the judges to have been rightly received, although the deceased did not die until eleven days after making them, and although the surgeon held out slight hopes of recovery to him until a few hours before his death. Here, however, the deceased had frequently expressed a belief, prior to the statement, that he should never get better.

Hope of recovery. It appears also that the doctrine laid down by Hullock, B., that "the declarations are admitted only if they are made under an impression of almost immediate dissolution," is by no means literally correct. It is true, as stated by Tindal, C. J., in R. v. Hayward (i), that "any hope of recovery, however slight, existing in the mind. of the deceased at the time of the declarations made, will undoubtedly render the evidence of such declarations inadmissible;" and accordingly it has been held (), that in the absence of expressions or conduct to show that the deceased was under the impression of approaching death, his statements are inadmissible. The deceased had said that he was "a murdered man, and it would have been better if they had killed him on the spot than left him to linger; and that he

(g) R. v. Van Butchell, 3 C. & P. 629.

(h) 1 Moo. C. C. 97; cf. R. v. Smith, L. & C. 607.
(k) Per Wightman, J., R. v. Qualter, 6 Cox, C. C. 357.

(i) 6 C. & P. 157.